Calif. blog regulations could hit Drudge, citizen journalists

California’s chief political watchdog, Ann Ravel, recently announced plans to regulate political websites that accept payments from campaigns. Last year Gov. Jerry Brown appointed her to head the Fair Political Practices Commission.

California bloggers right, left and center quickly criticized the proposal for quashing free speech and putting them at a disadvantage to out-of-state competitors.

Out-of-state competition might not be a problem, say some legal experts, because California’s Fair Political Practices Commission could cross state lines and police out-of-state blogs and websites, including international news aggregators like the Drudge Report, regardless of their location. And there is adequate case law to back it up.

Pavlovich Precedent: The ‘Effects Test’

UCLA law professor Stephen C. Yeazell argues that Pavlovich vs. Superior Court, a 2002 California Supreme Court case, established an “effects test” for evaluating jurisdictional claims in the Internet age. He believes it could provide a legal justification for the FPPC’s regulation of out-of-state bloggers, if the sites featured ads from California campaigns.

“Under the Pavlovich test, the question is whether or not the speech is aimed at California,” Yeazell said, when asked if California had jurisdiction to regulate an out-of-state website like the Drudge Report. “On the one hand, the website’s speech is aimed at California by advertising California campaigns and posting links about California stories.”

“Internet jurisdiction is a mess,” added Samuel Issacharoff, Professor of Constitutional Law at New York University School of Law, who shared Yeazell’s interpretation of the Pavlovich precedent.

Aggregators, Bloggers and News Sites Affected

National political websites and news aggregators, such as the Drudge Report, the Huffington Post, the Daily Caller and Real Clear Politics commonly feature stories on California while also running advertisements from California candidates, initiatives and campaigns. Matt Drudge, now a Florida resident, founded his website while based in California.

“What kinds of content would trigger the disclosure?” asked Paul. “Any sort of favorable comment about a campaign or critical comment about a rival campaign? Links to news reports favorable or damaging to a campaign?” They were questions raised by many California bloggers.

An FPPC spokeswoman told CalWatchDog.com that the specific details have yet to be determined. She added that Ravel was currently traveling out of the country and would be available for an interview on Friday.

Jerry Roberts and Phil Trounstine of CalBuzz, who are the only bloggers to interview Ravel on the subject, wrote on Monday, “We’re happy to report, after our conversation, we think she agrees with us that the best way to confront secret payments to websites that propagandize for their retainers lies in stricter, more timely and precise reporting of campaign expenditures.”

Critics of the state’s regulatory agency are less optimistic and warn that the proposal is a first step toward more regulations of political speech.

“This means a lot more than the issue at hand; it means the first of many additional steps to regulate political speech,” said Jonathan Wilcox, a communications consultant and former speechwriter for Gov. Pete Wilson. “Given the troubling political practices just in Sacramento, some will wonder if the FPPC could catch a speeding driver at the Indy 500.”

Chandra Sharma, the publisher of Fox and Hounds Daily, complained about the agency’s bad track record with new technology.

“The FPPC’s attempts to regulate online political speech over the past few years have been badly conceived and ill-informed,” he said. “This is yet another example of the FPPC attempting to regulate a medium it doesn’t understand, and as others have already noted, they haven’t even begun to realize the kind of unintended consequences that would manifest themselves as a result.”

No Protection from the First Amendment

Both Yeazell and Issacharoff, experts on jurisdictional issues, are skeptical that the FPPC would win a dispute with out-of-state bloggers because of complicating factors, such as First Amendment concerns. “I also imagine the courts being hesitant to extend the reach of a state regulatory agency in this case given other factors, including the First Amendment implications,” argued Yeazell. However, First Amendment experts believe that a state regulation of political websites, if properly crafted, could withstand a First Amendment challenge.

“When a blogger is paid to write for a campaign, that’s basically a campaign buying a political advertisement, said UCLA law professor Eugene Volokh, who publishes the legal blog, The Volokh Conspiracy. “The Supreme Court has held (in McConnell and Citizens United) that the government may require political advertisers to identify the source of the advertisement. Requiring the blogger to identify his speech as an advertisement paid for by a campaign would be much the same as the identification requirements that had been upheld — it would inform the public about who is actually paying for the speech, and do so at the moment the speech is received.”

“Frankly, I see little difference between a blogger advocating for a candidate or cause and a paid spokesman,” said Houston, who specializes in political law and regulatory issues. “The only real question is whether the bloggers should have to do so on their own.”

Former FPPC Chairman Dan Schnur expressed concern that new regulations “would discourage people from adding their voices to the political dialogue.”

“Whether it is constitutional or not shouldn’t be the only threshold,” said Schnur, the director of the Jesse M. Unruh Institute of Politics at the University of Southern California. “It may be constitutional but that doesn’t mean it’s a good idea”

26 comments

I don’t see any political partisanship here as long as the rules are enforced equally. For one, I would like to know who funds blogs so I know where the influence is. Of course just because a blog takes money from a candidate and writes up a favorable piece does not mean that the piece is flawed and should be ignored or discarded. I don’t think it will hurt the blog industry in California. Blogs outside California won’t target much news about our local elections here except for maybe the governor’s seat. Listen, transparency is a good thing when money is changing hands. I see nothing wrong with that. And, again, just because money changes hands it doesn’t necessarily mean that I will discount the article. It depends on the content. But it raises a red flag that I can include in my decision making process. Tell me what I’m missing here.

How do you equally enforce such a regulation? What constitutes a trigger? Does a comment or post by anyone (such as a reply to an article like this) make it a trigger? Heck why are they even attempting to REGULATE it? This leaves all sorts of potential problems. What if I host a server in Malaysia but write about the California from Hawaii and take a donation/money from a candidate? What does the state intend to do if I violate their intended regulation? Frankly I say this is just more garbage.

UCLA law professor Stephen C. Yeazell argues that Pavlovich vs. Superior Court, a 2002 California Supreme Court case, established an “effects test” for evaluating jurisdictional claims in the Internet age. He believes it could provide a legal justification for the FPPC’s regulation of out-of-state bloggers, if the sites featured ads from California campaigns.

California CANNOT regulate a website outside its borders, and Yeazell better stick to writing civil procedure text books instead of commenting on con law issues where he is clearly wrong.

They’ve already captured the mainstream media and turned them into journalism whores. That can’t even be honestly disputed. My God, just look at the slipshod journalism, re: political and social issues. Not just slanted. Most of the important news is either ignored or outright fabricated. Look at the Wall Street investigations or lack thereof. We have to turn to PBS to get any semblance of the truth about what happened. And that was the BIGGEST FINANCIAL MELTDOWN that we’ve seen since the GD of ’29/’30. So to come out and claim ‘The media is doing it’s job’ is a total farce and an insult to a reasonable, rational man.

So they’ve taken down the mainstream media. Now they’re coming after the bloggers. Afterall, isn’t that a logical sequence of events? Bloggers are picking up where the mainstream media dropped the ball. And bloggers are becoming more popular since the masses can no longer rely on the BS the mainstream media dishes out. Look, CNN viewship has fallen off a cliff. Go do your research if you disbelieve me. People have lost faith in mainstream media because it has evolved into a Pravdatized media whitewash. That’s the truth. Bloggers are next on their agenda. There will come a day when the oligarchs will make new rules about what you can write? Go ahead and laugh.

And they are simultaneously working on our justice system. All of you are aware of the George Zimmerman-Trayvon Martin case, right? This is scary, folks. Here now, you can call Alan Dershowitz whatever you want…. a liberal scumbag, a leftist jerk, a stinking dem….whatever….but you can’t call the man ‘stupid’ with a straight face. He’s one of the finest defense attorneys that this nation has ever seen. Smart as a whip. Just today he stated “If I were this prosecutor I’d be hiring a lawyer at this point” referring to Prosecutor Corey who has charged GZ with 2nd degree murder. Man oh man. Dershowitz believes that it’s a political prosecution. This is scary, scary stuff, my friends. The justice system is supposed to represent the pinnacle of integity and honor in America. We have prided ourselves on our justice system since our Founding Fathers broke off from the british. Now we are backsliding on our butts down the slippery slope. Listen to Dershowitz. Replay it a couple times. Listen to every single word. And then sit back and ask yourself “How did we get into this mess and how the hell are we going to get out of it?”

Here, folks. It’s over. Forget about it. Now is probably time to decide whether you will stick around or look for another homeland. This is just going too far. Civil liberties are being destroyed in secret out of the public’s view. So it’s not surprising that they’re targeting the bloggers now. It’s all starting to make sense now. The ring is closed. Good luck to all.

Civil liberties are being destroyed in secret out of the public’s view.

Of course it is done out of public view, and out of public debate, how else do you think the scam of the public sector unions could pull off SB400-aka 3%@50?????? Or HS educated dorks like Teddy Steals could have a gov job????? Stuff that NEVER happens in real life routinely happens in gov behind closed doors.

“Adapt and stop whining…..it is called cave painting and rock scrolling and in urban areas…graffitti……”

Adapt? You mean keep my mouth shut, pay my taxes on time and walk around for the rest of my remaining days, months, years with my tail stuck firmly between my legs singing ‘America the Beautiful’? I’m ain’t wired that way, man. I am a product of the psychedelic 60’s afterall when nothing was held sacred or rose above public scrutiny. But that was back in the day when we actually had news hounds and network anchors who fought tyranny instead of promoting it with slanted/absent/false reports. As much as I hate taggers at least what they write on the walls comes from the heart and wasn’t motivated with sugar daddy money.

“Stuff that NEVER happens in real life routinely happens in gov behind closed doors”

Remember when Obama gave his campaign speeches in 2008 and told us that he was going to be the new ‘tranparent’ President, rex? Remember when he said all pending bills would be posted online for 5 days for public review before he signed them??? 😀 The man is an inveterate liar. Nothing that comes from these clown’s mouths prior to an election can be trusted anymore. And when there is no trust in the integrity or honor at the highest offices – how could there be a democracy in America?

Had Napolitano not announced this new law I would have never known about it. Now if you are an Obama (or any other Pres) policy protester and have the nerve to show up to one of his event with a protest sign you could be subject to a year or more in jail AND WHETHER YOUR APPEARANCE AND CONDUCT PASSES SCRUTINY WILL BE DECIDED BY THE SECRET SERVICE – those SS goons who hire street whores while on overseas assignments then refuse to pay them!!! 😀 The only difference between the SS in America and the SS in Germany 1938-45 is that our don’t wear the lightening bolts on their collars.

The California Fair Political Practices Commission’s (FPPC) rumored blogger regulations would face major hurdles. The FPPC is considering imposing campaign disclosure requirements on websites offering paid political ads and/or paid political commentary. The proposed rules would seem unlikely to withstand constitutional challenge for the following reasons:

1) The rules would likely fail either for being overinclusive (by attempting to sweep in all “paid political content” from all sources, including traditional media) or underinclusive (by excluding some “paid political content”, such as traditional media).
2) The rules would likely fail for identity/viewpoint discrimination by including some speakers (alternative media) but not others (traditional media).
3) The rules would likely fail for acting as a prior restraint that chills political speech through a costly enforcement threat that also serves as a weapon against anonymous political dissent.

In the final analysis, the proposed rules appear less an attempt to expand into new media than an attempt to expend into all forms of political expression.